5 Questions, 3 Mediators, 5 Days — Part 1

As many of you know, I am a member of the International Academy of Mediators — an international organization dedicated to promoting the membership and camaraderie of the top mediators in the field. I recently inquired of my fellow IAMers of some tough questions that happen during mediation and I thought I would share the questions and answers with you. Each mediator independently answered the questions. The questions will be broken up into 5 parts.

What would you do if…..

In a mediation two co-defendants are disputing how much each should pay as a proportion of the total settlement. Early in the day, Defendant A says I will never settle this case if the proportion from me is anywhere near 50-50. Defendant B says I will never settle this case unless both defendants pay 50-50.

Mike Young: This is just a typical Mediation-Within-A-Mediation. Indeed, it is often the case that many mini-mediations are occurring in the context of the effort to settle the primary dispute. It’s why the law should be changed to allow mediators to text, drive, and eat hamburgers all at the same time, since we are just so darn good at multi-tasking. Just like with the primary dispute, momentum develops in the mediation of the ancillary issues, positions change, views are clarified, people want to go home. It is when people can see that prize within their grasp that many of these hard-line initial positions become forgotten. So I like to start out allowing everyone to claim whatever position they want, but also commit to wanting to find a resolution. And then work the co-defendant issue throughout the day while we are working the plaintiff/defendant issues. And if that fails, I’ll have everyone relax for a bit with a few beers…and then refuse to unlock the restroom doors until ink is on paper.

Tracy Allen: First, when I have multiple defendants, I work to avoid this situation. If we allow it to transpire, it makes it too easy for the defendants to get lazy and positional. I try to get the defendants to work as a unit vis a vis the plaintiff. First, we might start with finding out if as a group, they can agree on the range of damages the plaintiff might be entitled to, without any discussion of contribution or liability assessment among the defendants or from the plaintiff. We generally can achieve some form of consensus that if all goes well for plaintiff, damages would be in the range of x to y. Then we work on a collective opening number or counter offer. If there is one defendant who is particularly vociferous and who becomes the “squeaky mouse” creating a “choir effect” I might try to get that defendant out of the mix.

Most often the loudest mouth is the defendant with the least exposure tainting the well. We keep at this format for as long as we can. Eventually we get to the question of contribution – it might be on the same day or a new day. It’s another mediation in terms of risk analysis and contribution to the plaintiff’s damages, liability, etc. If we allow defendants to take positional stands at the outset, it makes for a very frustrating negotiation. Also, it entices the plaintiff to divide and conquer, leaving “empty chairs”, which is a risk tool I use to try to keep the defendants a cohesive unit.

Gig Kyriacou:

When this issue arises, I usually commence the negotiation portion among the defendants after first having met separately with plaintiff and each of the defendants to learn as much as possible about the dynamics amongst and between the parties. Each scenario is different and the dynamics matter.

Some suggestions include: informing defendants that they each typically do better with a global resolution. Thus, it is their best interests to find a formula for global resolution. If I can’t get such an agreement, then I discuss with plaintiff the possibility of separate negotiations. Progress with one defendant will often lead to the others becoming more reasonable for fear of being left out to defend alone. This also often leads to a plaintiff becoming more reasonable. Another option is to simply get the ball rolling by having each defendant set forth their opening offers without any defendant being bound to the same percentages in future negotiation rounds. Build off any momentum and keep an open mind as to where it may lead. Perhaps you can get plaintiff to respond with separate and global offers which demonstrates why it benefits defendants to work together on an appropriate formula.